1.Petitioner Carlos Ranferí Gómez López, a Guatemalan citizen
and active member of labor groups in his country, alleges that he was
the victim of an attempt on his life by agents of the Guatemalan
military forces on February 25, 1993, and that he was denied legal
protection. In his petition he alleges the violation of several
articles of the American Convention on Human Rights ("the
Convention").

I.BACKGROUND

A.Allegations of fact contained in the petitioner's
communications

2.On June 7, 1994 Mr. Carlos Ranferí Gómez López sent the
Commission a petition against the State of Guatemala, alleging
violation of rights guaranteed in the Convention.He expanded on the complaint in subsequent communications.

3.The petitioner explains in his complaint that before the events
he was working as Secretary General of the Labor Union of the National
Agricultural Marketing Institute, and was serving simultaneously as
Assistant Secretary General of the Workers Union of Quetzaltenango (UTQ).He said that several days before the attack he received death
threats by telephone, in which he was warned that he would be
assassinated if he did not stop his union and social work.

4.According to the petition, a few days before the attempt on his
life, Mr. Gómez López formed part of a delegation, along with
international reporters, that went to El Quiché to the Communities of
Peoples in Resistance (CPRs), made up of persons who had to flee their
homes because of the armed conflict in the area.The purpose of the delegation was to observe living conditions
in these communities, and collect testimony and complaints concerning
the mistreatment they received from the Guatemalan army.Mr. Gómez López's specific task was to film and photograph
conditions in the community and provide the necessary elements for a
documentary to be shown in Guatemala and abroad.His filming included scenes of military action by the army to
harass and intimidate members of the communities.

5.On February 25, 1993, Mr. Gómez López was returning on a
public bus from the visit to the CPRs.While the bus was traveling along the Inter-American Highway,
near Quetzaltenango, a group of individuals stopped the bus.These armed men were wearing ski masks, olive green uniform
shirts, military hats, and civilian pants. They carried squad weapons,
typical of those used by the Guatemalan army.Several of them got on the bus and forced the passengers to get
off, except for Mr. Gómez López, who was sleeping in the back of the
bus and had not noticed the incident. They woke him by kicking him and
pulling his hair, and began to search the bag containing his camera
equipment.

6.One of the men said, "This is the equipment."Another said, "You're going to die, Marxist dog," and
shot him in his chest, a few inches from his heart.The one who fired the shot told the other he was sure he had
killed the petitioner, because the shot was aimed at his heart.Then the men took the camera equipment, shot the tires of the
bus, and fled the scene with the rest of the assailants who were
waiting outside the bus.

7.According to the petition, one of Mr. Gómez López's
colleagues from the Workers Union of Quetzaltenango who was riding on
the bus took him in a private car to the National Police Station in
Cuatro Caminos, because there was no nearby hospital or clinic.When they arrived at the police station, those who brought Mr.
Gómez López asked for help from the police to take him to the
nearest hospital, but the police refused.Furthermore, they threatened others who offered to take him.

8.Meanwhile, Mr. Gómez López was growing weaker and losing
blood.An unidentified
driver offered to take him to the hospital in Totonicapán.He arrived at the emergency room at 12:30 a.m. on February 26.He remained in the Totonicapán National Hospital for two days.During his hospital stay, members of the National Police and
Army visited the facility to inquire about his condition.Nurses refused requests from the police and soldiers to be
allowed to enter Mr. Gómez López's room. Fearing for his safety,
fellow union members decided to move him from the hospital, although
he was really not well enough to travel.

9.Mr. Gómez López was taken to the Quetzaltenango Private
Hospital for X-rays.It
was discovered that the bullet he received had fragmented on entering
his body, causing multiple wounds in the liver and pancreas.His condition called for surgery and immediate intensive care.

10.After
surgery his condition remained critical, and he required a long
recovery.After he had
been in the hospital for 30 days, there was an incident in which he
was given in a single hour the amount of intravenous fluid that he
should have received in 24 hours.This caused a strong reaction, and he had to be transferred to
the intensive care unit.After
this episode, Mr. Gómez López felt that he was no longer safe in
Guatemala.On April 5 he was taken from Quetzaltenango to Guatemala
City.There he remained
in the hospital for two days and left for the airport with the
intention of going to Chicago to continue his treatment.

11.Accompanied
by a doctor, Mr. Gómez López arrived at the airport.After passing through customs and immigration, he was detained
by customs agents who threatened him, saying his visa and passport
were false.It was only
through the insistence of the accompanying doctor that Mr. Gómez López
received permission to board the plane.

12.Upon
arrival in the United States on April 8, 1993, he was admitted at Cook
County Hospital in Chicago, Illinois where he was treated for 22 days.After his release on April 30, he moved into a center for
refugees in Chicago.He
remained there for two months and eight days.

13.During
this time Mr. Gómez López remained in excruciating pain and anxiety
as a result of his surgery, and could not resume a normal life.He required the help of nurses for his basic needs, including
feeding, going to the bathroom, and going to bed.

14.After
Lic. Ramiro de León Carpio was inaugurated as President of Guatemala,
Mr. Gómez López decided to return to his country.He arrived on July 2, 1993, accompanied by Mr. William Wagner,
a U.S. social worker and volunteer at the Kovler Center for Treatment
of Torture Survivors.

15.According
to the petitioner, during the 20 days he stayed in Guatemala the house
where he was living and the union office were under constant
surveillance by cars with tinted windows and no license plates and by
unknown persons in civilian attire.William Wagner saw soldiers on guard from the roof of the
house where they were staying.In
addition, between July 8 and 11, armed men in military vehicles, some
in military camouflage uniforms, parked in front of Mr. Gómez López's
house every day, gunning their motors in a menacing fashion at various
times during the day.

16.After
these events, Mr. Gómez López decided to leave the country.On July 22, accompanied by reporters, members of the Peace
Brigades and personal friends, he went to the airport and left
Guatemala without incident.

17.The
petitioner alleges violation of his right to legal protection.He says that his case No. 399/93, after passing several legal
hurdles, remained in the District Court of Sololá, where they never
took testimony from the victim or the witnesses, and did not solicit
forensic and ballistic reports.He
alleges that, from the case file, it is evident that there was no
progress in the investigation since April 6, 1993.

18.The
petitioner maintains that efforts by the Prosecutor General of the
Department of Sololá during 1995 were limited and inadequate, and
that the preliminary investigation carried out by the Investigations
Department of the Human Rights Office also failed to advance the
investigation.

19.The
petitioner alleges that despite the passing of three years since a
representative of the Popular Labor Action Unit filed a complaint
based on the facts, and the opening of a criminal case (No. 399/93) in
the Sololá District Court, legal organs of the Guatemalan Government
have failed to conduct a proper investigation and make a diligent
effort to clarify the facts so that the responsible parties can be
identified and prosecuted.

B.Processing by the Commission -- Position of the Parties

20.The
Commission acknowledged receipt of the petition on June 14, 1994 and
registered the case as No. 11.303.On June 22, 1994 the petitioner sent a supplementary statement
and an amicus curiae brief concerning the case.

21.Pursuant
to Article 48.1 of the Convention and Article 34 of its Regulations,
on June 27, 1994 the Commission transmitted the pertinent parts of the
petition to the Government of Guatemala, requesting that it provide
information within 90 days on the facts set forth in that
communication.It also
requested any information that could make it possible to determine
whether domestic judicial remedies had been duly exhausted.

22.The
initial response of the Government of Guatemala summarizes its version
of the events that occurred on February 25, 1993 and describes the
nature and status of investigations undertaken by the State concerning
those events.It states
that although the investigations have not concluded, they are
underway.The Government
therefore requests that the petition be ruled inadmissible, because
there is a pending case under Guatemalan criminal law, and the
petitioner has not exhausted the domestic remedies as provided in
Articles 35.a and 37.1 of the Commission's Regulations.On October 17, 1994 the Commission forwarded the relevant parts
of the Government's initial response to the petitioner, giving him 45
days to submit his comments thereon.

23.On
December 28, 1994 the Commission transmitted the petitioner's response
to the Government.

24.The
Commission held a hearing attended by both parties on February 3,
1995, as provided in Article 65 of its Regulations.The petitioner, through his lawyer, reiterated his allegations
and set forth the reasons that could justify application of the
exceptions to the rule of exhaustion of domestic remedies. The
petitioner, Carlos Ranferí Gómez López, also gave his testimony to
the Commission.Representatives
of the Government of Guatemala presented a different view of the
facts.They said the incident was a common crime without political
connotation and which was not selective in nature, because the other
passengers on the bus were also robbed.They denied participation by police agents.They further alleged that the ineffectiveness of the
investigations was due to the lack of cooperation by the victim, who
was obliged to provide such cooperation.Therefore, they said, domestic remedies had not been exhausted.

25.On
February 15, 1995 the Government of Guatemala sent a letter to the
Commission informing of the results of the investigation carried out
by the Investigations Department of the Human Rights Office in Sololá.On February 22, 1995 the Commission forwarded the communication
to the petitioner.

26.On
March 29, 1995 the Commission sent the petitioner the pertinent parts
of a communication sent by the Government on March 18, 1995.With that note the Government transmitted copies of certain
sections of the report prepared by the Investigations Department of
the Human Rights Office.

27.On
April 17, 1995 the petitioner presented his comments on the
Government's communications.The Commission transmitted the pertinent parts to the
Government.

28.On
April 18, 1995 the Government sent a communication in which it
reported that the investigation of the facts was continuing.It further reiterated its view that the petitioner was not
singled out as a target in the incident, which was a common crime.It said further that the petitioner had refused to cooperate in
the investigations to the point that the authorities had not been able
to compel him to appear because they did not know his whereabouts.Therefore, the Government alleged that domestic remedies had
not been exhausted.On
May 5, 1995 the pertinent parts of the Government's communication were
forwarded to the petitioner.

29.The
petitioner sent his observations and on June 12, 1995 the Commission
transmitted the pertinent parts to the Government.The petitioner says that the Government's assertions are
inconsistent because they are not based on the evidence. He says that
so far none of the investigations carried out in Guatemala have
yielded satisfactory results.He
says it is absurd for the Government to allege that it does not know
his whereabouts, since he could be reached through his lawyer since
the case began in June 1994.

30.On
July 17, 1995 the Commission sent the petitioner the response received
from the Guatemalan Government.That
response states that the Prosecutor General of Sololá Department
undertook several initiatives.It
says further that the Investigations Department of the Human Rights
Office carried out a preliminary investigation and the results are
contained in a special report which was given to the judge of the
District Court in Sololá.

31.On
October 20, 1995 the pertinent parts of the petitioner's reply were
sent to the Government.The Commission asked the Government to provide information in
30 days on the steps taken by the prosecutor's office to pursue the
case and to submit a copy of the report by the Human Rights Office and
the statements taken by that office.As of this date, the Government has not replied to that request
nor provided the information requested.

II.ANALYSIS

A.Admissibility

32.From
the elements reviewed, it is clear that the Commission is competent to
consider the case because the petition states facts that tend to
establish violations of rights guaranteed in the American Convention
on Human Rights.(Article
47.b of the Convention.)

33.Pursuant
to the requirements of Articles 46.c and 47.d of the Convention, the
record does not show and it has not been alleged that the petition is
substantially the same as one previously studied or pending in another
procedure for international settlement.

34.In
accordance with the procedure set forth in Article 48.1.f of the
Convention, on February 7, 1995, the Commission sent a letter to the
parties in which it offered its services with a view to reaching a
friendly settlement of the matter. The petitioner's representative
also suggested this option to the representatives of the Government on
March 7, 1995.However,
on April 18, 1995 the Government informed the Commission that it had
no intention of submitting the case to friendly settlement.

35.Taking
into account that Mr. Gómez López's case contains the elements
described in Article 46.2 of the Convention, the requirement for
exhaustion of domestic remedies provided in Article 46.1.a does not
apply.The provisions of
Article 46.2 waive exhaustion of domestic remedies, because Mr. Gómez
López duly sought judicial remedies to obtain an investigation of the
facts, but three years later there has been no satisfaction or
specific decision concerning his rights.

36.On
February 26, 1993, the day after the attempt on his life, a
representative of the Popular Labor Action Unit (UASP) issued a press
statement making public the incident and filed criminal suit,
requesting judicial investigation of the attack.(Testimony of Nery Barrios and Luis Gonzáles; clippings from
El Nacional of February 26,1993, page 7, and Siglo Veintiuno of
February 27, 1993, page 6.)

37.A
criminal proceeding was opened with the Justice of the Peace in
Totonicapán.The file
contained a cursory police report that only presented a report of the
events but no evidence.(The
petitioner has submitted as evidence a notarized copy of the case
file, certified by Notary Alejandro Rodríguez Barillas on January 4,
1994. Subsequently referred to as "Notarized copy.")

38.On
February 27, 1933 the Justice of the Peace in Totonicapán ordered the
beginning of the investigative phase of the proceeding.However, on that same day he relinquished the case, saying it
was not in his jurisdiction.The
case was remitted to the Justice of the Peace in Sololá. (Notarized
copy.)

39.On
March 15 the Justice of the Peace in Sololá received the case and
also ordered the beginning of the summary phase. This required a
criminal investigation of the attack. However, on March 17, that judge
also withdrew from the case, on the grounds that he lacked
jurisdiction, and remitted it to the Criminal Judge of the Sololá
District Court. (Notarized copy.)

40.The
Judge of the Sololá District Court received the case on March 29 and
again ordered the initiation of the investigative proceedings.(Notarized copy.)

41.About
two weeks after the judge in Sololá took the case, the public
prosecutor received it through official notice and requested a legal
investigation of the facts.With
this request, the case was officially opened.(Notarized copy.)

42.From
the time case No. 399/93 was opened in the Sololá District Court to
investigate what happened to Mr. Gómez López, up until January 4,
1994, when Lic. Alejandro Rodríguez Barillas made the notarized
copies of the file, no legal action was taken in the case.This means that almost twelve months after the events occurred,
there were no statements taken from the victim or witnesses, nor any
forensic medical report documenting the wounds sustained by Mr. Gómez
López.(Notarized copy.)

43.The
Government of Guatemala alleges in a communication dated July 7, 1995,
that the Prosecutor General of Sololá attempted to take several
investigative steps.Furthermore,
the Government communicated that the Investigations Department of the
Human Rights Office undertook a preliminary investigation and its
conclusions appear in a special report that was presented to the Sololá
District Judge.

44.However,
the Government of Guatemala failed to reply to the Commission's note
of October 20, 1995, in which it requested specific information
concerning the investigative steps taken or planned by the public
prosecutor, and a copy of the report of the Human Rights Office.

45.The
Government has said that case No. 399/93 remains pending in the Sololá
District Court in the investigative phase, with no decision taken on
it.This means that three
years have gone by since the beginning of the incidents, yet the
competent organs of the Guatemalan Government have failed to conduct a
proper investigation or to take the necessary steps to clarify the
case and identify and prosecute the responsible parties.

46.The
Inter-American Court of Human Rights has established that "the
State claiming non-exhaustion has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective."(Inter-American Court of Human Rights. Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, paragraph 88
(emphasis added)).The
Government of Guatemala justifies the lack of progress in the case on
the grounds that Mr. Gómez López failed to fulfill his duty to
cooperate with the investigation and the prosecution of the case.The Government argues that the judge's work has been hampered
because of this lack of cooperation.It says that according to the legislation in force at the time
of the incident (Articles 77, 165, and 174 of the Guatemalan Criminal
Procedure Code) the victim is required to appear and testify, offering
evidence and identifying the responsible parties and all necessary
information to cooperate with the judge investigating the case, within
a period of five days.The
Government asserts that when this does not occur, the complaint is
automatically dropped.

47.It
should be noted, in the first place, that the Government of Guatemala
has not provided information to confirm its assertions, and they are
not supported in the file of the case.It alleges only the lack of cooperation; not the obstruction or
blocking of the investigation.

48.In
the second place, the legal conclusions of the Government of Guatemala
are incorrect.According
to Article 68 of the former Criminal Code criminal proceedings are
public actions.Therefore,
they are the responsibility of the public prosecutor.In cases of crimes against sexual freedom and privacy or public
morals, the proceedings are public actions but require a private
complaint.(Article 72.)
This means that the victim must initiate the legal action.But in the case of Mr. Gómez López, whatever the charge
brought in connection with the incident (attempted homicide or serious
wounds), the proceeding is a public action by virtue of the nature of
the offense and it is up the public prosecutor to initiate and carry
through with it.

49.Provisions
of Articles 77, 165, and 174 of the former Criminal Procedure Code
govern the opportunity of the victim to participate officially in the
public criminal proceeding. If the injured party does not make a
private accusation and bring charges in his initial statement or
within five days, the private accusation is dropped.But this does not mean that the complaint is withdrawn or that
the case is terminated, because the public prosecutor must continue to
carry the case forward.It
should be clear that the opportunity to participate in the proceeding
by offering evidence and opinions is a right, not an obligation.The obligation to clarify the incident and identify the persons
responsible is incumbent upon the public prosecutor and the judge, who
are authorized by criminal procedure to take all necessary measures.Therefore, the justification that the Government of Guatemala
invokes to attempt to avoid responsibility for the non-completion of
domestic efforts is spurious.

50.Furthermore,
this rule of domestic law has also been adopted by the Inter-American
Court in the Velásquez Rodríguez Case, Judgment of July 29, 1988,
paragraph 177, concerning the obligation to investigate, which is one
of the obligations assumed by the States parties pursuant to article
1.1 of the Convention.The
investigation "have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the
government." In this case, claims have been duly filed in
Guatemala, but the Government has not fulfilled its duty to follow
through on them, and has incurred in unjustified delay. The Government
thus cannot allege failure to exhaust domestic remedies.

52.Therefore,
the Commission considers that Guatemala's domestic remedies are not
effective or competent in this case.This means that the exceptions to exhaustion of domestic
remedies found in Article 46.2 of the American Convention are
applicable in the case.

53.The
requirement of Article 46.1.b of the Convention, that the petition be
lodged within a period of six months from the date of notification of
the final judgment, does not apply because there was no definitive
judgment in the suits filed. In accordance with Article 38.2 of its
Regulations, the Commission considers that the petition was lodged
within a reasonable time after the date on which the rights were
violated.The events
occurred on February 25, 1993 and the petition was filed with the
Commission on June 7, 1994.During
the interval between these dates the petitioner awaited a reasonable
amount of time for the results to come out of the legal
investigations.Taking
into account the irregularity and lack of clear understanding of the
course of the investigations, this time is reasonable and does not
violate judicial certainty.In
any case, the Government of Guatemala has not alleged noncompliance
with this requirement.

B.Merits

1.Conclusions of fact

54.The
petitioner has presented important elements of proof that the
Commission has carefully analyzed in drawing up its conclusions of
fact.

55.Based
on the sworn testimony of Carlos Ranferí Gómez López, Nery Roberto
Barrios de León and Luis González (victim and eyewitnesses of the
attack), and the content of the medical registers of the Private
Hospital of Quetzaltenango and the newspaper article in the daily
"El Gráfico" of March 20, 1993 (page 41), the Commission
accepts as proven the labor union affiliation of the petitioner, the
death threats he received, and the visits and activities he undertook
in the CPRs.The Commission also accepts as proven the attempt against his
life that occurred on February 25, 1993.

56.It
is proven that on February 25, 1993 Mr. Gómez López was returning on
a public bus from a visit to the CPRs, and that when the bus was on
the Inter-American Highway, near Quetzaltenango, a group of
individuals cut it off and stopped it.These armed men were wearing ski masks, olive green uniform
shirts, military hats, and civilian pants.They carried squad weapons, such as those carried by the
Guatemalan army.The
evidence shows that several of them got on the bus and forced the
passengers to get off, except for Mr. Gómez López, who was sleeping
in the back of the bus and had not noticed the incident.They woke him by kicking him and pulling his hair, and began to
search the bag containing his camera equipment. That one of the men
said, "This is the equipment," and another said,
"You're going to die, Marxist dog," and shot him in his
chest, a few inches from his heart.It is also proven that the one who fired the shot told the
other he was sure he had killed the petitioner, because the shot was
aimed at the heart.According
to the evidence, the men then took the camera equipment, shot the
tires of the bus, and fled the scene with the rest of the attackers
who were waiting outside the bus.

57.Based
on the sworn statements of Carlos Ranferí Gómez López, Nery
Barrios, William Wagner, and Benito Juárez, the Commission considers
it proven that when they arrived at a police station, the persons
accompanying Mr. Gómez López asked the police for help to take him
to the nearest hospital but the police refused, saying his condition
was too delicate to move him.The
police also threatened other people who offered to take him.

58.This
same evidence confirms that at the airport in Guatemala, when Mr. Gómez
López was preparing to leave the country, he was harassed by customs
agents who intercepted him and detained him, saying that his visa and
passport were false. Only thanks to the insistence of the accompanying
doctor was Mr. Gómez López permitted to board his flight.The fact that Government agents never initiated a criminal
investigation with a view to bringing charges for falsification of
documents, as the record demonstrates, demonstrates the intimidatory
nature of the actions taken at the airport.

59.Finally,
based upon the above-mentioned sources, the Commission believes it to
be true that during the 20 days that Mr. Gómez López remained in
Guatemala, the house where he was staying and the labor union office
were under constant surveillance by cars with tinted windows and no
license plates, and by unknown persons in civilian attire.Soldiers were seen on guard from the roof of the house where he
was staying.In addition,
between July 8 and 11, armed men in military vehicles, some in
military camouflage uniforms, parked in front of Mr. Gómez López's
house every day at various times, gunning their motors in a menacing
fashion.

60.The
Government has recognized the incident that took place on February 25,
1993 and basically disputes only one point of fact. It has maintained
that the petitioner was not the only one robbed; other passengers were
robbed as well.The
Government has not proved this sufficiently, and witnesses presented
by the petitioner indicate that he was the only one robbed.Therefore the Commission believes the latter version of
events is true.

61.The
other facts have been denied by the Government of Guatemala, but the
Government has not presented any evidence to support its position.

2.Responsible parties

62.The
Commission has concluded that the perpetrators of the attack on Mr. Gómez
López on February 25, 1993, on the Inter-American Highway, were
agents of the Government. Several elements lead to this deduction.

63.The
attire of the attackers, their modus operandi, and the type of weapons
used are clear indicators of a military or police action.

64.Another
indicator is the selective and arbitrary nature of the events in the
attack:the requirement
that all passengers get off the bus except Mr. Gómez López; the lack
of intent to rob, this being shown by the fact that the attackers had
no need to awaken Mr. Gómez López violently with kicks in order to
rob him, and they only took Mr. Gómez López's camera equipment, not
personal items such as wallet, watch, etc.; the manifest purpose of
taking his camera equipment; and the political references expressed by
the attackers.All these
elements, added to the occurrence of the attack right after the victim
had been monitoring military activity in the CPRs, make it possible
for the Commission to conclude that the crime was carried out by
public agents as a reprisal, and in an effort to prevent the
consequences deriving from the work and activities of Carlos Ranferí
Gómez López.

65.Furthermore,
the occurrences before and after the attack on Mr. Gómez López must
be noted.The death
threats received in an effort to persuade him to abandon his union
activities, the refusal of police to help Mr. Gómez López and their
threats against anyone who would help him, the harassment in the
airport when Mr. Gómez López was leaving Guatemala, and the
surveillance by unidentified individuals and military agents in a
menacing manner after his return to Guatemala are all actionsby Government agents which manifest an intent to cover up and
protect the perpetrators of the attack on February 25, 1993.The Commission concludes that the perpetrators were also
Government agents, and that the subsequent acts of other Government
agents were an attempt to cover up the attack and protect those
responsible with misguided esprit de corps.

66.The
Government has denied these conclusions, alleging that the incident on
February 25, 1993 was a common crime. It has maintained that the
petitioner was not the only person robbed, and that other persons were
robbed as well.As noted
above, the Government has not adequately proved this assertion of
fact.In any case, the
preceding analysis indicates that the persons responsible for the
incident were public agents, and that the attack was directly against
the petitioner.

67.Leaving
aside the incident itself and its proof, the intervention of
Government agents is confirmed by the fact that it has been and
continues to be Government practice in Guatemala to use official
agents in acts of repression and clandestine attacks against human
rights and union groups.The
Court said in the Velásquez Rodríguez Case that "[i]f it can be
shown that there was an official practice of disappearances . . .
carried out by the Government or at least tolerated by it, and if
th[is] disappearance . . . can be linked to that practice, the
Commission's allegations will have been proven to the Court's
satisfaction."(See
Judgment of July 29, 1988, paragraph 126.)This jurisprudence is applicable in the present case.
Concerning the Government practice in Guatemala, see Annual Report of
the Inter-American Commission on Human Rights 1990-1991, page 449;
Annual Report of the Inter-American Commission on Human Rights 1991,
page 210.)

68.The
Commission noted in its latest visit to Guatemala that extrajudicial
executions committed by state agents "follow a pattern of
selective murder of officials, and community, union, university, and
human rights, and other leaders, seeking thereby to instill
generalized terror and to choke off the process of constitutional and
democratic opening."(See
Annual Report of the Inter-American Commission on Human Rights 1994,
page 186.) Carlos Ranferí Gómez López belonged to at least one of
the groups mentioned; therefore it can be concluded that he too was
the victim of this behavior by public agents.

3.The domestic judicial process

69.The
Government of Guatemala has said that case No. 399/93 is pending in
the Sololá District Court, and that the incident involving Mr. Gómez
López on February 25, 1993 is being investigated.

70.The
Government also says that the prosecutor general of the Department of
Sololá carried out several investigative efforts in this case.It says that the Investigations Department of the Human Rights
Office also carried out a preliminary investigation and that the
special report based on its findings was given to the Sololá District
Court.

71.However,
the Government itself notes that case No. 399/93 remains pending in
the Sololá District Court in the preliminary phase, with no decision
to date. This means that three years have passed since the incident
occurred, yet the courts of Guatemala have not been able to conduct an
adequate investigation or complete the legal procedures to solve the
case and identify and prosecute the responsible parties.

C.Conclusions of Law

1.The right to life

72.Article
4 of the American Convention provides that every person has the right
to have his life respected.In
the present case the Commission concludes that the Government of
Guatemala has not respected the right to life of Carlos Ranferí Gómez
López and has thereby violated the American Convention.

73.Prior
to the attempt on his life, the petitioner had received explicit death
threats.During the attempt, and after taking his camera equipment,
the assailants intentionally shot Mr. Gómez López with intent to
kill.The petitioner has
declared that after the shots he heard one of the attackers say to the
other that he was sure he had killed the victim, because the shot was
aimed at the heart.

74.Although
the assailants failed to achieve their purpose of killing the
petitioner, the attack of February 25, 1993 constitutes a clear
attempt on the life of Mr. Gómez López.The shot he received nearly killed him.His risk of death could not have been greater.(See medical registers of the Private Hospital of
Quetzaltenango, the certified records of the Cook County Hospital, and
the testimony of Patricia Murphy and Joann Persch.)

2.The right to humane treatment

75.Article
5 of the American Convention provides that every person has the right
to have his physical, mental, and moral integrity respected.The facts alleged in the present case, which the Commission has
accepted as proven, constitute a violation by the Government of
Guatemala of the petitioner's right to have his integrity respected in
all three aspects.

76.The
wound caused by the assailant's bullet is a direct attack upon the
petitioner's physical integrity.It has made it necessary for Mr. Gómez López to undergo
surgery several times.His
delicate state of health has required much special care.He has had to endure painful rehabilitation and loss of
physical capacity to perform basic functions.

77.His
mental integrity has also been affected by the attack and by the
events occurring before and after it.The threats of death if he did not stop his union work, the
attack of February 25, 1993, the refusal of the police to help him and
their threats against anyone else who tried to do so, the incident of
harassment at the airport when he was preparing to leave Guatemala,
and the surveillance by unidentified persons and military agents in a
menacing manner upon his return to Guatemala are a series of events
with a common pattern and intent:the destruction of his personality, so that he would be cowed
into quitting his social work.The
periodic threats, carried to the extent of an attempt--that only by
luck failed to take his life--,constitute cruel, inhumane and
degrading treatment and have left a serious psychological scar on Mr.
Gómez López.

78.The
episodes suffered by the petitioner have definitely affected his moral
integrity.Mr. Gómez López
was actively working in social groups. He was Secretary General of the
Labor Union of the National Agricultural Marketing Institute, and was
serving simultaneously as Assistant Secretary General of the Workers
Union of Quetzaltenango.He
worked in the area of social development.

79.In
this capacity he was part of a delegation, with international
reporters, which visited the CPRs in El Quiché, communities of
persons who had to flee their homes because of the armed conflict in
the area.As was noted,
the purpose of the visit was to observe living conditions in these
Communities, and gather statements and complaints concerning
harassment by the Guatemalan army.

80.This
type of activity is typical of the attitude of social commitment that
Mr. Gómez López has had to postpone or abandon because of the
persecution suffered in the attack of February 25, 1993 and the events
that occurred before and after it.He has even had to leave his country.

81.Furthermore,
the physical deterioration which Mr. Gómez López suffers as a result
of his wounds has affected his self esteem.This effect constitutes significant damage to his moral
integrity.

3.The right to a fair trial and judicial protection

82.Articles
8 and 25 of the American Convention establish the right of every
person to a hearing by a competent tribunal for protection against
violation of his rights, and the state is required to ensure minimum
guarantees for determination of his rights.The Government of Guatemala has not provided the necessary
elements for guaranteeing these rights, thereby violating the
Convention.

83.Article
25.1 incorporates the principle--recognized in international human
rights law--that the instruments or procedures for guaranteeing these
rights must be effective.It
is not enough for the judicial system of a state to be seized of a
case; it must provide the possibility of effective recourse, in
accordance with the rules of due process.(I/A Court H.R., Cases of Velásquez Rodríguez, Fairén Garbi
y Solís Corrales, Godínez Cruz, Preliminary Objections, Judgment of
June 26, 1987, paragraphs 91, 90, and 92, respectively.)

84.The
Government of Guatemala has not given Mr. Gómez López, a victim of
crimes which should be pursued de oficio, adequate or effective
recourse to satisfy the minimum guarantees he is due and to make a
determination concerning his rights.More than three years have passed since the events occurred,
and the Guatemalan courts, from lack of will and inefficiency, have
not clarified them nor established the identity of the responsible
parties.Given the
handling of the judicial process in the case, it is unlikely that
there will be proper resolution of Mr. Gómez López's case.

85.The
judicial protection afforded by the Government of Guatemala to Mr. Gómez
López is clearly ineffective.This
is not uncommon in judicial proceedings in Guatemala involving
investigations of human rights violations.In fact, inefficient investigations in these cases result in a
serious state of impunity and deny justice and reparations for harm to
the victims.

86.Since
1986 the Inter-American Commission on Human Rights has made repeated
reference in its annual reports to the basic inability of the
Guatemalan judicial system to protect the rights of its citizens,
noting that the courts are inefficient and non-functional, and that
the judicial system has a serious credibility problem. (Annual Report
of the Inter-American Commission on Human Rights 1986-87, page 251;Annual Report of the Inter-American Commission on Human Rights
1988-89, pages 185-187; Annual Report of the Inter-American Commission
on Human Rights 1989-90, page 157; Annual Report of the Inter-American
Commission on Human Rights 1990-91, page 480; Annual Report of the
Inter-American Commission on Human Rights 1991-92, page 205; and
reports of the Inter-American Commission on Human Rights on the
Situation of Human Rights in Guatemala of 1985 and 1993, pages 55, 57,
respectively and Fourth Report, pages 15, 16, 51.)

87.As
a result of its on-site visit to Guatemala in 1993, the Commission
observed once again that one of the most serious problems affecting
Guatemalan society is impunity, which is due, among other causes, to
inefficient administration of justice.The Commission confirmed that "the prevailing impunity
stems in large measure from the ineffectiveness of the police, judges,
prosecutors, and other personnel of the justice system in carrying out
duties essential to order and security." (Annual Report of the
Inter-American Commission on Human Rights 1994, page 190.)

88.The
inadequate way in which Guatemala carries out investigations of human
rights violations has been documented by the petitioner in the sworn
statements of experts on the subject and with other texts.(Elizabeth Iglesias, Guatemala/Harvard Criminal Justice
Project, Final Report; Paul Soreff; Kenneth Anderson, Maximizing
Deniability: the Justice System and Human Rights in Guatemala and
conclusions extracted therefrom; Thomas J. Barret, Justice
Suspended: TheFailure of Habeas Corpus in Guatemala;Richard Wilson, Conclusions and Recommendations for a
Defense Component, Guatemala/Harvard Criminal Justice Project;
Alice Jay, Persecution by Proxy; and Bonnie Tenneriello, The
Administration of Injustice, Military Accountability in Guatemala and
Habits of Repression, Military Accountability for Human Rights, Abuse
under the Serrano Government in Guatemala.)

90.The
petitioner also refers to the reports by Mr. Christian Tomuschat,
independent expert on human rights for the United Nations in Guatemala
until 1993. In his report of December 18, 1992, Mr. Tomuschat says
that machinery for prevention and punishment of crimes continues to be
ineffective in Guatemala.He
states that in most cases of crimes against the life and physical
integrity of human beings it is impossible to gather sufficient
evidence to punish the perpetrators, and that trials are usually slow
and end with acquittal for lack of evidence, so that crimes remain
unpunished. (E/CN.4/1991/5, paragraph 243.)Mr. Tomuschat also concludes in his two last annual reports
that the current criminal justice system in Guatemala is
unsatisfactory, and that the justice system in general is inefficient
and flawed. (Documents E/CN.4/1992/5, paragraph 189; E/CN.4/1993/10,
page 108; E/CN.4/1993/10 paragraph 174, and E/CN.4/1993/10 paragraph
187, respectively.)

4.Freedom of thought and speech

91.Article
13 of the Convention protects freedom of thought and expression.Article 13 specifically states that "this right includes
freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing, in print,
in the form of art, or through any other medium of one's choice."

92.The
State agents who committed the attack of February 25, 1993
demonstrated that they had a specific goal:to obtain the camera equipment and photographs which had been
taken during Mr. Gómez López's visit to the CPRs and to prevent the
diffusion of those photographs by murdering Mr. Gómez López.The State agents were able to take the materials and although
they failed to kill Mr. Gómez López, they attacked him physically in
such a manner that they were almost able to insure his death.The activities carried out by Carlos Ranferí Gómez López
during his visit to the CPRs constitute a legitimate exercise of the
right to free thought and expression.Thus, the attempt on his life of February 25, 1993 constitutes
a violation of the rights protected by Article 13 of the Convention.

5.Freedom of association

93.Article
16 of the American Convention provides the right of every person to
associate freely for whatever purpose, and that the exercise of this
right may only be limited by law.The Government of Guatemala has caused certain situations in
which Mr. Gómez López has been prevented from exercising his right
of free association, and reprisals have been taken against him for
activities undertaken in the exercise of this right.

94.The
death threats received by the petitioner are the first weapon used to
try to discourage him from pursuing his union activities.They were very explicit. The threat was carried out on February
25, 1993, and subsequent events completed the circle of intimidation
aimed at halting Mr. Gómez's union work.

95.The
attempted murder of Mr. Gómez López in order to prevent him from
continuing his union and social activities--in itself an illegal and
violent act-- demonstrates the lengths to which an intolerant
authoritarian system can go to eliminate dissident views and
ideologies.

6.Freedom of movement and residence

96.The
facts to which Carlos Ranferí Gómez López has been subjected as
found by the Commission have taken place in a manner which has
affected Mr. Gómez López's right to freedom of movement and
residence.

97.Article
22.1 of the Convention establishes that "[e]very person lawfully
in the territory of a State Party has the right to move about in it,
and to reside in it subject to the provisions of the law."The incidents which have affected Mr. Gómez López have had
the effect of preventing his residence in Guatemala to the point that
they have forced him to leave the country to avoid serious danger to
his life and moral and physical integrity.

98.The
occurrence in the airport in Guatemala, when Mr. Gómez López
prepared to leave the country, constitutes a particularly clear
attempt to prevent the exercise of the right of all persons to freely
leave any country, as expressed in article 22.2.Mr. Gómez López was intimidated by customs agents who
intercepted and detained him asserting that his visa and passport were
falsified.Only because
of the insistence of his accompanying physician was Mr. Gómez López
able to obtain permission to board his flight.Considering the factual context in which this incident occurred
and there having been ordered no investigation to determine whether
Mr. Gómez López had engaged in criminal falsification, the
Commission considers this incident to be an act of intimidation and a
violation of Carlos Ranferí Gómez López's right to leave the
country.

7.The obligation to respect rights

99.The
violations described above show that the State of Guatemala has not
complied with the obligation assumed in Article 1.1 of the American
Convention, "to respect the rights and freedoms recognized
therein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms."

100.As
provided in Article 1.1, the first obligation of the states parties to
the American Convention is to respect the rights and freedoms
recognized therein.

101.In
order to determine which forms of exercise of public power violate the
obligation of Article 1.1 to respect rights, the Inter-American Court
has ruled that "under international law a State is responsible
for the acts of its agents undertaken in their official capacity and
for their omissions, even when those agents act outside the sphere of
their authority or violate internal law," and that "any
violation of rights recognized by the Convention carried out by an act
of public authority or by persons who use their position of authority
is imputable to the State."(Velásquez Rodríguez Case, Judgment of July 29, 1988,
paragraphs 169, 170, 172.)

102.The
Commission has accepted as proven that the attack on Mr. Gómez López
that occurred on February 25, 1993 and the events before and after it
were carried out by Government agents.Therefore, as provided above, the Government of Guatemala has
violated the obligation of Article 1.1 to respect the rights of Carlos
Ranferí Gómez López contained in the American Convention, in
relation to the violation of the rights recognized in Articles 4, 5,
8, 13, 16, 22 and 25 of the American Convention.

103.The
second obligation set forth in Article 1.1 is to ensure the free and
full exercise of the rights and freedoms recognized in the Convention.

104."This
obligation implies the duty of the States Parties to organize the
governmental apparatus and, in general, all the structures through
which public power is exercised, so that they are capable of
juridically ensuring the free and full enjoyment of human rights.As a consequence of this obligation, the States must prevent,
investigate, and punish any violation of the rights recognized by the
Convention." (I/A Court H.R., Velásquez Rodríguez Case,
Judgment of July 29, 1988, paragraph 166.)

105.The
evidence in this case indicates that the Guatemalan legal system has
not been able to investigate the violation of Mr. Gómez López's
human rights and has not punished the responsible parties.It has not done so because it has lacked the will to do so, and
because the inefficient and irresponsible nature of the judicial
system has made it impossible.Therefore,
the Commission concludes that Guatemala has also violated Article 1.1,
because it has not guaranteed the exercise of the rights of Mr. Gómez
López.

106.To
justify the inefficiency of the judicial proceedings, the Government
of Guatemala has alleged the non-cooperation of the petitioner in the
investigation. In this connection the decision of the Inter-American
Court in the Velásquez Rodríguez Case, Judgment of July 29, 1988,
paragraph 177, is particularly pertinent.As for the obligation to investigate, the Court notes that:"An investigation must have an objective and be assumed by
the State as its own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim or his family
or upon their offer of proof, without an effective search for the
truth by the government."

III.RESPONSE TO THE COMMISSION'S ARTICLE 50 REPORT

107.Pursuant
to Article 50 of the Convention, the Commission during its 91º
Regular session, approved Report 6/96 concerning the present case.That report and the recommendations contained therein were
transmitted to the Government of Guatemala by communication of June 3,
1996 with a request that the Government inform the Commission of the
measures which it had adopted to comply with the recommendations of
the Commission and to remedy the situation examined within a period of
60 days.By note of May
16, 1996, the Government of Guatemala responded to Report 6/96.Also, on July 8, 1996, the Commission received from the
Government a communication which attached the certified file of the
case of Carlos Ranferí Gómez López processed by the Assistant
Departamental Human Rights Ombudsman in Sololá.

108.The
Government's central argument, as set forth in its response, is that
the case of Mr. Gómez López relates to a common crime.The Government therefore asserts that it cannot accept
responsibility for the facts and cannot provide compensation to the
victim.

109.The
Government states that, "despite the contrary conclusion reached
in the Report, there exists sufficient evidence which could be
considered by the Commission as proof leading to the conclusion that
the facts under study demonstrate that a common crime occurred,
product of delinquency, which can by no means be considered a human
rights violation under international human rights law."

110.In
support of this argument, the Government provides the file of the
Human Rights Ombudsman's Office.It is important to consider that the Government was
specifically requested to provide this file during the processing of
this case before the Article 50 report was approved.Yet, the Government failed to provide it.The Commission notes that the purpose of this stage of the
process is not to determine facts, which have already been proven and
established in the record.Rather, at this stage of the proceedings, the Commission's
duty is to consider whether the State has complied or not with the
recommendations which were formulated in Report 6/96.

111.In
addition, the Commission considers that the remission of the file
which had been processed by the Assistant Departamental Human Rights
Ombudsman's Office does not provide any new elements of proof which
would significantly alter the facts already studied by the Commission,
requiring the Commission to change its conclusion that Mr. Carlos
Ranferí Gómez López suffered abuses committed by agents of the
State as set forth in the Article 50 report.In addition, the facts and arguments set forth by this
important body of the State of Guatemala do not have the weight of
legal truth established in a res judicata decision; that type of
weight may only be granted by a court of law.In any case, the facts have been sufficiently established and
analyzed fully in the appropriate context.This case does not simply require a determination of what
occurred on February 25, 1993, as if the events of that day
constituted an isolated event, as they are treated in the file of the
Human Rights Ombudsman's Office.Rather, the case also involves a succession of intimidatory
acts and harassment carried out after February 25, 1993 against the
victim.This series of
events was proven by the petitioners and, although the Government
denies these facts, it has not provided evidence which would support
its petition.

112.Even
if the Commission did not conclude that the acts committed against Mr.
Gómez López were committed by State agents, the Government in its
response also recognizes its deficiency in ensuring the safety and
physical integrity in this case to the same degree it acts deficiently
in relation to all crimes committed against the State's inhabitants.With this statement, the Government deprives the citizens of
Guatemala of their right to have their government ensure their safety
and physical integrity.Specifically,
in relation to this case, the Government admits its responsibility for
having failed to prevent and ensure the human rights of Mr. Gómez López,
thereby incurring international responsibility for the State of
Guatemala.(I/A Court
H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, paragraph
172.)

113.In
relation to the recommendation of the Commission whereby the State is
asked to "[u]ndertake an immediate, impartial, and effective
investigation of the facts set forth in the petition, to identify the
responsible parties and punish them in accordance with the law,"
the Government respond that it is continuing with its investigations.The Government notes that it has not been able to obtain the
cooperation of the victims which would be required to bring to a
positive conclusion the investigation and thus requests that the
Commission accepts as fulfilled this recommendation.

114.In
relation to the recommendation of the Commission that the Government
of Guatemala "[u]ndertake the actions necessary to determine the
responsibilities for and sanction the deficiencies and delays in the
judicial investigations carried out in the case of Carlos Ranferí Gómez
López," the Government responded as follows:

The Government of Guatemala believes that the criteria of the
Commission applied in suggesting this recommendation are very
subjective given that deficiency and delay in obtaining positive
results in an investigation cannot be analyzed looking only at time
factors but rather one must employ a serious analysis of the case,
including the circumstances in which the facts arose, physical
evidence, testimony and other elements which would lead to legal
certainty in determining responsibility in the case, regardless of
whether this analysis takes a significant amount of time.

115.The
State of Guatemala may not avoid international responsibility arguing
that the case continues to be processed but that it has been difficult
to continue because of the lack of cooperation of the victim.The Commission has already concluded that the proceedings in
this case were deficient and the Government has not provided
information establishing otherwise.The State of Guatemala is reminded that the obligation to
ensure the rights recognized in the Convention consists of the
obligation to act; to initiate the necessary investigations and
processes and to continue with them with due diligence and with or
without the assistance of the victims, because the obligation to
ensure is an independent legal obligation which, by its nature, is
nondelegable and unrenounceable.

116.The
Commission accepts that the gathering of evidence tending to establish
the commission of a crime and the determination of responsibility for
that crime depend on many factors.However, time is a determining element.Among other things, proceedings carried out in a timely manner
produce legal certainty and allow the conservation of evidence which
if not gathered in a timely a manner might be lost or destroyed.In extreme cases, if proceedings are allowed to extend
indefinitely, impunity results.Thus,
the fact that the State of Guatemala nowhere in its report provides
information about advances in the investigations in this case allows
the Commission to conclude that time continues to pass in this case
while the crime committed against Mr. Gómez López remains
unpunished.

117.The
Commission considers that the State has not shown in its response to
the Article 50 report that it has complied with the central
recommendations made by the Commission for the resolution of the
situation under examination.

Therefore,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

CONCLUDES:

118.On
the basis of the information and the observations set out in this report
and taking into consideration the observations submitted by the State of
Guatemala in relation to Report 6/96:

a.That the State of Guatemala is responsible for violations of the
human rights of Carlos Ranferí Gómez López, to life, personal
integrity, a fair trial, freedom of association, freedom of movement and
residence and judicial protection, all of which are guaranteed,
respectively, in Articles 4, 5, 8, 13, 16, 22 and 25 of the American
Convention on Human Rights.

b.That the State of Guatemala has not fulfilled its obligations set
out in Article 1 of the American Convention, to respect the rights
recognized therein and to guarantee their full and free exercise.

RECOMMENDS:

119.The
Commission recommends to the State of Guatemala that it:

a.Undertake an immediate, impartial, and effective investigation of
the facts set forth in the petition, to identify the responsible parties
and punish them in accordance with the law.

b.Make restitution for the consequences of the rights violated,
including adequate compensation to Carlos Ranferí Gómez López for the
damages suffered.

120.To
publish this report, pursuant to Article 48 of the Commission's
Regulations and Article 51.3 of the Convention, because the Government
of Guatemala did not adopt measures to correct the situation denounced
within the time period.